1. This revision petition has been preferred against order dated 12.5.1995 passed by the Second Additional Judge to the Court of District Judge, Guna.

2. The facts necessary for the disposal of tee case in brief are that a suit was filed by the respondent against the petitioner which was decreed ex parte. An application purporting to be under O. 9 R. 13 CPC was moved by the revisionist for setting aside the ex parte decree. The learned trial Court vide its order dated 3.1.95 rejected the application. The revisionist preferred an appeal before the Second A.D.J. Ashoknagar, purporting to be u/s. 96 CPC against judgment and decree dated 8.10.92 passed inasuit No. 4/A/91 and the order dated 3.1.95 passed in M.C.C. No. 492. An application purporting to be u/s. 5, Limitation Act was also made for condonation of delay. The learned lower Court by the impugned order considered the application u/s. 5 of the Limitation Act and also made observations about the application for setting aside the exparte order but finally rejected the appeal holding that it was barred by time. Feeling aggrieved this revision petition has been preferred by the defendant.

3. The learned counsel for the revisionist contended that once an exparte decree is passed and the defendant availed that opportunity by moving an application under O.9 R. 13 and pursued it till its disposal, no appeal against the original decree was maintainable. It was a mistake on the part of the learned counsel appearing on behalf of the revisionist before the lower appellate Court to have filed a consolidated appeal against the original exparte decree as well as against the order rejecting the application under O.9 R. 13. In reality the learned Court below had no jurisdiction to hear appeal against the original decree as no appeal lay and as no appeal was filed prior to the filing of the application under O. 9 R. 13 CPC and its disposal. The Court had jurisdiction only to dispose of the appeal against the order rejecting the application under O.9 R. 13 which was within time. That appeal should have been decided on merits. The learned Court below, therefore, committed a jurisdictional error in rejecting the appeal as barred by time. The learned counsel referred to the provisions of Explanation to O. 9 R. 13 and AIR 1982 SC 1397 (Rani Choudhary v. Lt. Col. Suraj Jit Choudhary), 1989 (1) MPWN 146 = AIR 1989 MP 224 (Sumera v. Madanlal and others) and 1994 JLJ 110 (Naraindas v. Bhagwandas).

4. The learned counsel for the respondent contended that the petitioner had availed of opportunity and had filed a consolidated appeal against the original decree passed exparte as well as against the rejection of application under O. 9 R. 13 CPC. He also moved an application u/s. 5 Limitation Act. The learned trial Court considered the application u/s. 5 and held that there was no sufficient ground. He cannot challenge that order in this revision petition.

5. The facts so far as they are relevant for the disposal of this petition are not in dispute. It is admitted on all hands that an ex parte decree was passed against the revisionist and the revisionist initially did not file an appeal against the exparte decree and preferred to file an application under O. 9 R. 13 and pursued it till its disposal. He, thereafter filed an appeal against the rejection of that application and also challenged the original decree passed exparte purporting to be u/s. 96 CPC. The question to be determined is as to whether an appeal could be considered at that stage against the original exparte decree. A peep to the explanation to O. 9 R. 13 CPC goes to show that a provision has been made therein that where an appeal has been preferred against an exparte decree and it has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, application for setting aside that exparte decree did not lie. The Apex Court in 1982 AIR SC 1397 (supra) considered the impact of this explanation. It was